OEP launches investigation into the regulation of combined sewer overflows (CSOs)

The Office for Environmental Protection (OEP) can announce today (Tuesday, June 28) that it is to carry out an investigation into the roles of Ofwat, the Environment Agency and the Defra Secretary of State in the regulation of combined sewer overflows (CSOs) in England.  

The aims of the investigation are to determine whether these authorities have failed to comply with their respective duties in relation to the regulation, including the monitoring and enforcement, of water companies’ own duties to manage sewage. In doing so, we will seek to clarify the respective duties.  

Further, if there are found to be failures, our objective will be to improve regulation, leading to long term improvement in water quality.  

The OEP’s Chief Regulatory Officer Helen Venn said: “Unsatisfactory water quality is an important, longstanding, systemic issue and one of the most pressing environmental concerns at this time.   

“This is a complex area and there is already a great deal of work underway to try and tackle the problem of untreated sewage in our rivers. Our investigation will contribute to that work by providing clarity about the legal responsibilities of the different bodies involved to ensure measures to tackle the problems can be targeted and effective.  

“We clearly do not know at this point what our findings will be or where the investigation will take us. It is possible that it could result in enforcement activity and / or in broader actions to improve the legal and / or regulatory systems. Our priority throughout will be to protect and improve the environment.” 

The investigation follows a complaint submitted to the Interim OEP by Salmon & Trout Conservation UK. 

The OEP’s strategy and enforcement policy can be found here

 

Further information:

The investigation announced today is a Statutory Investigation under s 33 Environment Act 2021. Under s 33 Environment Act 2021, OEP has powers to carry out an Investigation into whether a public authority has complied with environmental law.  Public bodies, including the Secretary of State, have a statutory duty to cooperate with OEP and provide it with such reasonably assistance as it requests.  An investigation may lead to enforcement action by OEP.   

One of the OEP’s main functions is enforcement, and we have specific and unique powers to deal with suspected breaches of environmental law by public authorities. We will always look to first seek early resolution to remedy any issues, but can and will use formal enforcement mechanisms available to us, including taking court action, when necessary.  

Our enforcement mechanisms include issuing information notices, to which public authorities must respond. These can be used to understand the facts of a situation, which can inform future decisions. Where we have served an information notice, we can later issue a decision notice – a formal document setting out our findings on the public authority’s failure to comply with environmental law, why we believe this is serious and the steps we consider it should take to put matters right. Public authorities must respond in writing and confirm whether they are going to take the steps we have required.  

Where court action is required to secure an appropriate outcome, in England, we may commence proceedings in the English High Court via an environmental review enabling the court to determine the matter in law. In Northern Ireland, we may apply to commence proceedings in the Northern Ireland High Court via a review application. If, on an environmental review, the court agrees that a public authority has failed to comply with environmental law, it will publish a statement of non-compliance (SONC). Subject to certain conditions specified in the Environment Act, the court may also grant any remedy available via a judicial review. A public authority must publish a response to a SONC within two months of the conclusion of the proceedings including any appeal. That response must set out the steps it intends to take in light of the SONC. We expect the public authority’s response to present a meaningful and substantive approach to tackling the findings. 

Following all investigations (save those where we take the matter to court) the OEP must prepare a report which we will usually publish. These reports will set out our conclusions on whether a public authority has failed to comply with environmental law.

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